1811815 (Refugee)
[2022] AATA 2878
•25 July 2022
1811815 (Refugee) [2022] AATA 2878 (25 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1811815
COUNTRY OF REFERENCE: Vietnam
MEMBER:Mark Bishop
DATE:25 July 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 25 July 2022 at 11:57am
CATCHWORDS
REFUGEE – protection visa – Vietnam – religion and political opinion – Catholic and anti-government and environmental protestor – no supporting evidence provided – application prepared by third party with no knowledge of claims by applicant – no involvement in protests, engagement with authorities, harm or fear of harm – members of family unit – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), (b), (c), 65
Migration Regulations 1994 (Cth), r 1.12, Schedule 2CASE
MIAC v SZQRB (2013) 210 FCR 505Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 April 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Vietnam applied for the visas on 17 May 2017. The delegate refused to grant the visas on the basis that she might be a catholic, may have participated in ant-government protests and her family protested against the environmental degradation of the sea as a result of the Formosa Ha Tinh Steel Corp Toxic Spill.
The applicants appeared before the Tribunal on 25 July 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The 1st applicant is [the first applicant]. She is the mother of applicants 2 and 3. Applicant 2 is [the second applicant]. He is aged [Age] with date of birth [Date]. Applicant 3 is [the third applicant]. He is aged [Age] with date of birth [Date]. Each of the applicants gave evidence to the Tribunal.
The applicants provided a copy of the decision record to the Tribunal. The applicants were represented in relation to the review.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
In her application for a protection visa (Form 866B) the applicant stated as follows:
· My family and I don't like the current Vietnamese government. Initially I would like to study to develop my profession and new skills [in Australia]. However after living in Australia, I appreciate more of the democratic beliefs and the human rights that every Australia citizen here acquires. When I was in Vietnam, I could see the injustice and the authority of the Government officials made decision to take away our places of prayers. The Government confiscated homes for our prayers and developed into tourist places. We have been suppressing to raise our voice or opinion as a catholic believer. I often participated in the protest against the atrocity of the Communist government . On many occasions, amongst other students and professional workers, I was detained for 5 weeks after participating in the protest. I was told by the arrested Police I would be summoned one day to the court for my participation in the protest against the government.
· If I return to Viet Nam now, I will be arrested at the airport because my family are protesting and demanding the explanation from the Vietnamese government about the toxic environment that the local Vietnamese citizens in Ba Ria - Vung Tau are currently enduring. There were millions of dead fishes on the sea and the government did not help to clean up. The cause for the toxic of the environment on the coast of Ha Tinh was from the dumping of chemical of the Chinese company, this has caused polluted air and water around the area which lead to the downfall of the economic growth of our area. Fishes are the source of business products for my family and other locals to generate income. We could no longer work or have food to eat because all the fishes are dead. Because of this, my family and some locals have expressed anger and protest, the Police have now warned if my family continues, we will be all detained and placed in prisons.
· There is only one government who controls all citizens. Wherever I go to seek safety, If! Provide my name and with no reason for moving to a new area, I will be interrogated. If the local authority finds out that my family is protesting against the government, 1 will be detained and sent back to my hometown so that I would be faced the same sentence as per my family's action.
· Because my family is currently protesting the government about the toxic environment in my hometown, the government can make warrant arrests at any time and at any day. As one member of the family, I will suffer same consequences. Our family has been categorized as one of the protest groups which according to the government, the traitors of the government. The government will never provide protection to citizens who raise their own voice/opinions or beliefs. Let alone, my family is actually expressing our anger and organizing the protest.
The applicant did not attend the Protection visa interview that was scheduled for 20 March 2018. The applicant was lawfully and correctly notified of the scheduled interview by email on 2 March 2018. The applicant later advised she did not receive advice of the date and time of the protection interview.
On 15 June 2022 the Tribunal wrote to the applicant inviting her to attend a Tribunal hearing on 25 July 2022. The Tribunal advised “Please provide all documents you intend to rely on to support your case by 18 July 2022.” Prior to the hearing the applicant did not provided any documents to the Tribunal. At the hearing the applicant did not provide any documents to the Tribunal.
In her Form 866C the applicant declared she left Vietnam legally.
In her Form 866B the applicant advised “The Government confiscated homes for our prayers and developed into tourist places. We have been suppressing to raise our voice or opinion as a catholic believer.”
The statement of claim as summarised above in paragraph 11 identifies the following integers:
·The applicant doesn’t like the current government.
·Initially she wished to study in Australia.
·In Vietnam government officials are unfair and unjust.
·In Vietnam the government confiscated homes.
·The applicant was detained for 5 weeks.
·The applicant was told she would be summonsed one day to attend court because she participated in protests.
·If she returns to Vietnam she will be arrested at the airport.
·Her family protested against toxic spills. Her family is currently protesting (as at time of lodging application for protection visa).
·There is only one government in Vietnam.
·As her family is currently protesting (as at time of lodging application for protection visa) the government will not provide protection and her family members can be arrested at any time.
The Tribunal asked the applicant to summarise her claims as they related to her application for a protection visa. The applicant advised she left Vietnam with her 2 sons to come to Australia in search of a better life. She wished for her sons to study in Australia and gain an education. She disavowed any knowledge of the content of her application for a protection visa.
The applicant advised she entered Australia as the holder of a tourist visa. At the time her visa was about to expire she sought to seek a way to remain in Australia. She was introduced to a [Mr A]. [Mr A] lodged her application for a protection visa. She was not aware of the content of this application for a protection visa. [Mr A] filled out the relevant forms. He did not read the content to her. He did not explain the content to her. She does not read or write English.
The Tribunal put each of the claims summarised in paragraph 16 separately to the applicant. She advised the Tribunal she had no knowledge of any of these claims. She advised she left Vietnam so that her sons might have a better future and this was possible in Australia. She advised the Tribunal neither she nor her sons had ever been the subject of harm, discrimination, detention, discrimination or persecution by the police, security agencies or any agencies of the Vietnamese government. She left Vietnam as the holder of a valid passport and lawfully entered Australia. Her passport is still current.
The applicant expressly and repeatedly denied any involvement in political matters or environmental issues in Vietnam prior to coming to Australia. The applicant expressly and repeatedly advised the Tribunal she had never had any engagement with the police, security services, intelligence agencies or other like government agencies in Vietnam. She did not have a criminal record. She had never been detained by the Vietnamese police. There was no reason to arrest or detain her if she returned to Vietnam and she did not believe this would occur at the airport upon arrival in Vietnam. She and her family had not demonstrated against the Vietnamese government. She left Vietnam 12 months after divorcing her husband. She sought a better life in Australia as her 2 sisters had found a better life in [Country 1] and were now [Country 1] citizens.
She advised the Tribunal that she was born and raised a catholic in Saigon. She practised her religion freely in Vietnam. She had never been harmed, detained, prosecuted, persecuted or discriminated against for any reason relating to religion in Vietnam.
The applicant expressly disavowed any knowledge of the claims in her application for a protection visa. The applicant disavowed any claims relating to religions, politics, environmental or governance. The applicant expressly disavowed any engagement with any of the police, security or like agencies of the Vietnamese government.
The applicant repeatedly told the Tribunal she and her two sons came to Australia in 2017 in search of a better life. She had found that better life in Australia. She wished to remain in Australia. She earned a good income through a number of part time jobs. She had a home and sufficient income to raise her family in Australia. Her sons were doing well in Australia and were about to enter university in the case of the oldest son and were part way through [an] apprenticeship in the case of the younger son.
Critically the applicant advised the Tribunal she did not fear any harm from persecution if she returned to Vietnam. She did not have any reason to fear any form of engagement with the police, security agencies or like agencies of the Vietnamese government. Her only concern was that she no longer had a house in Vietnam.
The applicant’s two sons separately gave evidence to the Tribunal in the presence of their mother. On occasion one of the sons used the service of the interpreter. Their evidence largely confirmed the evidence of their mother. Both boys advised the Tribunal they had never had any engagement with the police, security services or like agencies in Vietnam. Both boys advised the Tribunal they had practised their catholic religion in Saigon and practised their catholic religion in Melbourne. They did not fear persecution for reason of religion or any other reason if they returned to Vietnam.
As the applicants each separately advised the Tribunal they did not fear persecution for reason of religion, membership of a particular social group or political opinion the Tribunal did not put any information under Country Information (CI).
The Tribunal finds the applicants are outside the country of their nationality and do not have a well-founded fear of persecution in the home country.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
Having considered the applicant’s claims individually and cumulatively, for reasons set out above, the Tribunal finds that each of the applicants does not face a real chance of persecution on return to Vietnam for any reason in the reasonably foreseeable future and that any applicant fear of persecution is not well-founded.
For the reasons given above, the Tribunal is not satisfied that [the first applicant] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
For the reasons given above, the Tribunal is not satisfied that [the second applicant] (older boy) is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
For the reasons given above, the Tribunal is not satisfied that [the third applicant] (younger boy) is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Complementary protection
In considering whether the applicants meet the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk that the applicants will suffer significant harm. In this case, the Tribunal has found that the applicants are national of Vietnam and the Tribunal therefore finds that Vietnam is the ‘receiving country’ for these purposes.
For reasons set out above, the Tribunal finds the applicants do not face a real chance of serious harm if they return to Vietnam from the authorities for reason of religion or any other reason.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. For the same reasons the Tribunal does not accept that there is a real risk the applicants will suffer significant harm on the above basis as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam.
[The second applicant] (older boy)
The Tribunal finds that [the second applicant] is a member of the family unit, as defined in Regulation 1.12 of the Regulations, of 5(1) of the Act and, therefore, is also a member of the same family unit, as defined in subsection 5(1) of the Act, as [the first applicant].
As the Tribunal has refused to grant a Protection visa to [the first applicant], the Tribunal also refuse to grant a Protection visa to [the second applicant], who is a member of the family unit included in the application on the basis that he does not satisfy section 36(2)(b) or (c) of the Act.
[The third applicant] (younger boy)
The Tribunal finds that [the third applicant] is a member of the family unit, as defined in Regulation 1.12 of the Regulations, of 5(1) of the Act and, therefore, is also a member of the same family unit, as defined in subsection 5(1) of the Act, as [the first applicant].
As the Tribunal has refused to grant a Protection visa to [the first applicant], the Tribunal also refuse to grant a Protection visa to [the third applicant], who is a member of the family unit included in the application on the basis that he does not satisfy section 36(2)(b) or (c) of the Act.
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
Mark Bishop
Senior MemberAttachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Jurisdiction
-
Natural Justice
-
Remedies
0
1
0